Citation Nr: 0816499
Decision Date: 05/20/08 Archive Date: 05/29/08
DOCKET NO. 05-31 462 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an increased rating for service-connected
carcinoma, left upper lobe, status post left upper lobectomy,
to include the issue of whether a reduction in the disability
rating from 100 percent to 10 percent, effective June 1,
2005, was proper.
2. Entitlement to an increased initial rating for a service-
connected left lateral chest scar, current evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran had active service from July 1968 to June 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio. In March 2005, the RO reduced the veteran's disability
rating for his service-connected carcinoma, left upper lobe,
status post left upper lobectomy, from 100 percent to 0
percent, effective June 1, 2005.
The veteran appealed the issue of entitlement to an increased
rating, to include the issue of whether the reduction in the
disability rating from 100 percent to 0 percent was proper.
In July 2005, the RO increased the veteran's evaluation for
his service-connected carcinoma, left upper lobe, status post
left upper lobectomy, to 10 percent, effective June 1, 2005.
However, since this increase did not constitute a full grant
of the benefits sought, the increased rating issue remains in
appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993).
In September 2005, the RO granted service connection for left
lateral chest scar, evaluated as noncompensable (0 percent
disabling).
In February 2007, the veteran was afforded a hearing before
John J. Crowley, who is the Veterans Law Judge rendering the
determination in this claim and was designated by the
Chairman of the Board to conduct that hearing, pursuant to 38
U.S.C.A. § 7102(b) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
At his hearing, the veteran indicated that he had received
relevant treatment from the VA medical center at Wade Park
within the last year, to include two pulmonary function
tests. He stated that one of these pulmonary function tests
had been performed within the last two months, and that he
had this report in his possession. During his hearing, it
was agreed that the record would be kept open until April 15,
2007, in order to provide the veteran with time to submit
this evidence.
The most recent VA evidence of record is an examination
report, dated in February 2006 (which includes pulmonary
function test results), and a March 2006 addendum. It
therefore appears that at least one relevant VA pulmonary
function test report exists that is not currently of record.
On remand, an attempt should be made to obtain this evidence.
See 38 U.S.C. § 5103A (West 2002 & Supp. 2007); Bell v.
Derwinski, 2 Vet. App. 611 (1992); see also VAOPGCPREC 12-95,
60 Fed. Reg. 43186 (1995).
With regard to the issue of an increased rating for
service-connected carcinoma, left upper lobe, status
post left upper lobectomy, in a recent decision,
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the
Court held that a 38 U.S.C. § 5103(a) notice requires
that the Secretary notify the claimant inter alia that
to substantiate an increased rating claim the claimant
must provide, or ask the Secretary to obtain, medical or
lay evidence demonstrating a worsening or increase in
severity of the disability and the effect that worsening
has on the claimant' s employment and daily life; that
the claimant must be notified that should an increase in
disability be found, a disability rating will be
determined by applying relevant DCs, which typically
provide for a range in severity of a particular
disability from 0% to as much as 100% (depending on the
disability involved), based on the nature of the
symptoms of the condition for which disability
compensation is being sought, their severity and
duration, and their impact upon employment and daily
life; and that the notice must also provide examples of
the types of medical and lay evidence that the claimant
may submit (or ask the Secretary to obtain) that are
relevant to establishing entitlement to increased
compensation-e.g., competent lay statements describing
symptoms, medical and hospitalization records, medical
statements, employer statements, job application
rejections, and any other evidence showing an increase
in the disability or exceptional circumstances relating
to the disability.
In this case, the July 2004 VCAA notice does not appear to
conform to the requirements as set forth in Vazquez-Flores.
On remand, the veteran must be afforded a corrective VCAA
notice letter that conforms to the Court's decision in
Vazquez-Flores.
Accordingly, the case is REMANDED for the following action:
1. The veteran should be provided
corrective notice on his increased rating
claims consistent with the holding in
Vazquez-Flores v. Peake, 22 Vet. App. 37
(2008). In particular, he should be
advised as follows:
a) to submit medical or lay evidence
demonstrating a worsening or increase in
severity of his disability and the effect
that worsening has on his employment and
daily life;
b) notice of the schedular criteria for
evaluating malignant neoplasms of the
respiratory system under Diagnostic Codes
6819 and 6844.
2. Make arrangements to obtain all of
the veteran's treatment records from the
VA facility in Wade Park, Ohio, dated
after March 2006.
3. After the development in the
preceding paragraphs is completed, the RO
should readjudicate the issues on appeal.
If either of the determinations of these
claims remains unfavorable to the
appellant, he should be provided with a
supplemental statement of the case (SSOC)
that addresses all relevant actions taken
on the claims for benefits, to include a
summary of the evidence and applicable
law and regulations considered. The
appellant and his representative should
be given an opportunity to respond to the
SSOC.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).